R v Shan Shan Xu [No 1] [2005] NSWSC 73

R v Shan Shan Xu [No 1] [2005] NSWSC 73

Although the CCTV footage had been shown in open court and access to public exhibits is normally granted, the circumstances were wholly exceptional. The judge accepted that release of the images would likely lead to further and not inconsiderable publicity and posed a real risk of harm to the rehabilitation of the accused, who had experienced major depression and remained under treatment. Because the media had seen the footage and could report and describe the proceedings, the sacrifice to open justice from refusing access to the video itself was small compared with the potential harm.

Jurisdiction
Australia
Judgment Date
15 February 2005
Procedural Posture
Criminal Trial; Non Party Media Application for Access to Exhibit / During Judge Alone Murder Trial After Evidence Complete and Before Submissions
Outcome
Application refused.
Legal Topics
['release of Video Exhibit' 'cctv Footage Shown in Open Court' 'access to Court Files by Non Parties' 'mental Illness Defence' 'potential Harm to Accused' 'wholly Exceptional Circumstances']
['criminal Law' 'open Justice' 'media Access to Court Material' 'mental Health'] ['release of Video Exhibit' 'cctv Footage Shown in Open Court' 'access to Court Files by Non Parties' 'mental Illness Defence' 'potential Harm to Accused' 'wholly Exceptional Circumstances']

Case Brief

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Procedural Posture

Criminal Trial; Non Party Media Application for Access to Exhibit / During Judge Alone Murder Trial After Evidence Complete and Before Submissions

Legal Issues

  1. 1 ['Whether the ABC should be granted access to Exhibit A, being CCTV video footage tendered in the murder trial and shown in open court.' 'Whether the interests of open justice and the normal presumption of access to admitted evidence should yield to wholly exceptional circumstances.' 'Whether release and likely broadcast of the footage would risk harm to the rehabilitation and wellbeing of an accused with a history of major depressive illness.']

Ratio Decidendi

Although the CCTV footage had been shown in open court and access to public exhibits is normally granted, the circumstances were wholly exceptional. The judge accepted that release of the images would likely lead to further and not inconsiderable publicity and posed a real risk of harm to the rehabilitation of the accused, who had experienced major depression and remained under treatment. Because the media had seen the footage and could report and describe the proceedings, the sacrifice to open justice from refusing access to the video itself was small compared with the potential harm.

Court Disposition

Application refused.

Orders

  • ["The ABC's application for access to Exhibit A, being the CCTV video footage, is declined."]